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By the Court,

Cole J.

We think it would be unconsionable to enforce a specific performance of the contract set forth in the pleadings in this case. As we understand the testimony, it shows most clearly, satisfactorily, and conclusively, that Sheldon was induced to abandon a previous contract, which he had made with Kelley, for the sale of this identical tract of land, for ten dollars an acre, and enter into the contract, which is sought to be specifically enforced, and in which the land is sold for eight dollars an acre, and this too by means of the misrepresentations and gross fraud practiced upon him by Kelley, relating to the true value and actual condition and character of the land. The parties to this contract lived in Milwaukee county, and the land in controversy was situated at a distance in Cook county, in the State of Illinois. It appears that Sheldon had not seen the land for some time, while Kelley went down to see it, and did personally examine it, before the making of the contract of the 29th of November, 1854, set forth in the bill of complaint. Upon this point the witness, Albert Wingate, testified that Kelley was at his house on the Saturday night prior to *262the 20th of November, 1854; and that he, the witness, resided about a mile from this land; that Kelley then claimed that it was an extraordinary good piece of land; and that he considered it worth fifteen dollars an acre. This witness went with Kelley over the land, aided him in finding a purchaser, and says that the land was worth from twelve to fifteen'dollars an acre at that time. It appears that Kelley then saw the Klines and had a talk with them about buying the land, and told Wingate he thought he had sold it to them. Another witness, J. C. Whitman, says, that Kelley was at his house near the land, in November, 1854, and after the 20th of that month, and offered the land for sale; asked twelve dollars and fifty cents an acre for it, and said it was worth that, and he thought he could make the Klines take it at that price, if he could satisfy them that the title was good. This witness says that land in the vicinity was cheap at twelve dollars an acre, and that this tract would have been cheap at that price. Two other witnesses, S. D. Huntington and E. M. Everdon testify that they were acquainted with the land ; that it was good land, and worth from twelve to fifteen dollars an acre in November, 1854. The evidence shows that the following matters occurred between the parties, just previous to the making of the contract of the 29th of November. Lothrop Smith says, in substance, that he was at work for Sheldon on the 23d of November, 1854, and that Kelley came there, and stated to Sheldon, that he had been to Illinois, where the land was; and that he could get just as good land there, adjoining Sheldon’s land, for seven and eight dollars an acre; represented to Sheldon that persons were on this land, which he had previously bought, and were cutting timber there, and that a good deal of timber had been taken off, &c. Mary Culiett testifies to substantially the same things, as being said by Kelley to Sheldon ; Eben Cornwall also testifies, that he heard Kelley say in November, 1854, to Sheldon, that he could get *263land in Illinois, just as good as that he bought, for seven dollars an acre ,• that the neighborhood where this land was situated was a bad one ; and that he would not live there on any account; and that the land was not worth more than seven dollars an acre, and that he could not afford to give more, but would give seven dollars and fifty cents per acre because there had been so much said about trading, &c.

Now, what is the fair, legitimate, irresistible inference from this testimony. It must be remembered that there had been a previous contract for the sale of this land for ten dollars an acre. This previous contract was abandoned, and the contract of the 29th of November entered into. This latter contract was made after Kelley had been down to examine the land after his talk with Klines about buying it, when he knew all about the land; that it was a fine quality, eligibly situated, in a good neighborhood and really worth at least twelve dollars an acre. He knew, too, that he was trading with a man who was ignorant of the true condition, and real value of this property; who had not seen it for some time. Considering then the nature and circumstances of the transaction, the situation of the contracting parties, is there room to doubt that Sheldon acting upon the faith of the representations made to him by Kelley, as to the condition of the land, and its value, abandoned the old contract and entered into the new one, thinking he was obtaining a fair compensation for the property, when selling it for eight dollars an acre ? And is it not equally apparent, that Kelley made 'these false statements in reference to the land, its situation, the neighborhood in which it was located, the assertion about trespasses having been committed upon it, with the deliberate purpose and design of deceiving Sheldon; expecting that he would act upon the representations, which he himself well knew to be entirely false. Judging from every principle of human conduct, and the motives which usually influence *264men, he could have had no other design, and expected no other result. Now to permit him' to reap the benefits of his own fraud would he inequitable and unjust. We therefore think the circuit court very properly refused to enforce a specific performance of this contract. But still we are of the opinion that the hill ought not to have been dismissed. It appears that over four hundred dollars have been paid upon this contract. It is alleged in the bill of complaint that Sheldon is embarassed in his pecuniary circumstances. Whether he is or not is quite immaterial, for the circuit court having the case before it, ought to have done complete justice between the parties. The case should have been retained, and the money already paid upon the contract with interest, ought to have been ordered to be paid back by Sheldon.

The judgment of the circuit court dismissing the complaint for this reason must therefore be reversed, and the cause remanded to that court for further proceedings in accordance with this decision.

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